“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding,” it reads.
This is part of a dissent Brandeis offered in the case Olmstead v. U.S. objecting to the warrantless wiretapping of a bootlegger. His point was that it didn’t matter that the tap was a function of law enforcement doing its work.
“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent,” he wrote. “Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers” — ergo, liberty is most threatened by encroachment from well-meaning, zealous people who don’t recognize the context or impact of their actions.
This is not Brandeis’s most famous quote. That’s his one about transparency: Sunlight, he wrote in 1913, “is said to be the best of disinfectants.” Inject a little sunlight into the body politic and all sorts of diseases die off.
But it’s useful to consider the overlap of those two quotes, as Lawrence Lessig did indirectly in a 2009 essay for the New Republic. Titled “Against Transparency,” Lessig was instead offering a warning about what the unfettered access to information might bring.
“To understand something — an essay, an argument, a proof of innocence — requires a certain amount of attention,” Lessig wrote. “But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding — at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding.”
In other words, transparency may well be important. But simply offering up copious amounts of information without context risks accidental — or willful — misunderstandings and misrepresentations.
“We are not thinking critically enough about where and when transparency works,” he wrote, “and where and when it may lead to confusion, or to worse.”
We hardly need to delineate examples in which enormous amounts of information have been reviewed and pieces presented out of context in misleading ways. We can point, in recent weeks, to a cache of emails from top federal infectious-disease expert Anthony S. Fauci that has been presented as providing conclusive evidence of various claims that the presenter seeks to make. We can look at the effort to undermine the results of the 2020 election, an effort that leverages myriad pieces of information related to the casting or counting of ballots to pick out manufactured crises and allegations of wrongdoing.
The ultimate example of this, of course, is underway in Arizona. The Republican-controlled state Senate there authorized an untrained company to lead an “audit” of the votes cast in the state’s largest county. The result has been a mind-boggling demonstration of precisely the warning that Lessig offered: a limited sense of how vote-casting works and the expectations that accompany reviewing ballots that has left actual experts shaking their heads and wringing their hands. The end result is pretty much guaranteed, with the appointed “auditors” somberly informing the public that their review of the millions of ballots cast in the county presented some pool of dubious votes that exceeds President Biden’s margin in the state. Given a massive cache of information to review, the team tasked with reinforcing suspicions about the election has the opportunity to do exactly that.
It’s easy to see this as entirely partisan and devious, in part because that’s clearly much of former president Donald Trump’s motivation for supporting it. But many of those engaged in this effort are, instead, people of zeal, well-meaning but without understanding.
Earlier this month, the Atlanta Journal-Constitution reported that it had obtained digital images of 145,000 ballots cast in Georgia’s Fulton County, under the provisions of a state law encouraging transparency. The paper included exactly the kind of context for the material that Lessig suggests, picking out examples of questionable ballots and explaining how they were adjudicated.
I hadn’t seen the paper’s report until Tuesday morning, at which point I thought about pointing to the material as the likely next front in efforts to undermine voting results. Imagine the Arizona audit but, instead of taking place on the floor of a coliseum, having it happen online with the ability to anyone, anywhere to evaluate and elevate perceived problems. It’s like taking the detritus of a building collapse, posting photographs of the pieces on a website and encouraging amateurs to figure out why it fell.
About an hour after I proposed writing about those ballot images to my editor, I received an email. The author was part of a team reviewing the vote in that state, he explained, and he’d found some suspect ballot counts based on the absentee ballot images. By way of credentials, he said that he “run[s] a successful business and I know my way around spreadsheets.”
You’ll remember, by the way, that the results in Georgia were repeatedly reviewed. An official recount of the results did in fact turn up a number of Trump votes that hadn’t been tallied, but he still lost the state.
It’s a little frustrating that the Best Picture-winning movie “A Beautiful Mind” is by now so old. It came out 20 years ago (amazingly) meaning that fewer of you reading this are likely to have seen it. It tells the story of John Nash, a brilliant mathematician and eventual Nobel Prize winner. The heart of the story, though, is Nash’s descent into mental illness, an affliction that had him scouring newspapers and magazines for clues that could be used in service of his imagined secret mission of aiding the federal government. Every periodical was an opportunity for new information, each letter on a newspaper page something that might fit into the pattern he was looking for.
A man of zeal, well-meaning but without understanding that he was chasing ghosts. He’d convinced himself — and been convinced by nonexistent characters with whom he believed he was in conversation — that he was at the vanguard of saving the nation. So he pored over front pages and ads for cleaning products to pick out the nefarious messages planted by the Russians. The context was wrong but the evidence ample. In essence, Nash was a one-man QAnon.
Transparency is important, as is skepticism. But we aren’t all trained or experienced in properly contextualizing what the surfeit of available information shows us. There are obvious dangers in treating nonserious evaluations of unclear information as dispositive.
On Jan. 6, it’s probable that a rioter entered the Capitol in an effort to block the finalization of the election results because he’d been convinced by faulty arguments cobbled together from improperly understood evidence that rampant fraud had occurred. Some well-meaning, zealous, not-understanding man might have walked under that Brandeis quote on his way to undercut democracy.